Samsung can't seem to catch a break. Just last night, it was revealed the company is under investigation by the Department of Justice for its use of standard-setting patents. Today comes much worse news—a serious loss to Apple at the International Trade Commission.

An ITC judge ruled [PDF] four Samsung phones infringed four Apple patents. If the ruling holds up, it means a variety of Samsung products are likely to be banned from the US market. Kicking Samsung products off the market is the type of relief Apple is also seeking from the federal court trial it recently won in San Jose; however, it may or may not get such an order. The judge has yet to rule on those post-trial motions.

The Apple patents deemed infringed include one design patent and three utility patents. The design patent, D618,678, includes a diagram of the exterior of an iPhone, and has Apple higher-ups like Jonathan Ives and Steve Jobs listed as co-inventors. Patent 7,479,949 is related to multi-touch screen navigation, and also has Jobs listed as an inventor. Patent RE41,922 relates to how images are blended when more than one application runs at once; and patent 7,912,501 describes an audio plug that can tell if a microphone or non-microphone related device has been plugged in.

Samsung was found not to have violated design patent D558,757 or patent 7,789,697, which also describes a type of audio plug. Interestingly, Apple was found to not be practicing the '697 patent at all. (A patent holder doesn't have to practice their patents in order to sue in district court—thus, patent trolls exist—but any company going to the ITC for relief has to, in theory at least, show that a "domestic industry" exists that uses their patents.)

It's not immediately clear from the order what Samsung phones will be affected, but they will surely include some or all of the ones Apple mentioned in its initial complaint. Those phones include the Samsung Fascinate, Galaxy S 4G, Intercept, Transform, Captivate, and Infuse 4G. The Galaxy Tab and Galaxy Tab 10.1 were also accused.

The ITC order issued today is an "initial determination," and the judge's decision must still be affirmed by the full commission. That should occur in February. It's not at all unusual for the full commission to undo some or all of an ITC judge's ruling, so this is far from wrapped up for Apple. Finally, the decision by the full ITC can still be appealed to the US Court of Appeals for the Federal Circuit.

The judge is the one who saw the evidence at trial, and his determination counts for a great deal. Overall, this is a clear loss and another sign that Samsung is losing its global patent battle with Apple.

111 Reader Comments

I wish Apple and Samsung would settle these cases and cross-license patents so that they could compete in the marketplace by each trying to offer the best product to the consumer--like Apple and Microsoft do thanks to their patent cross-licensing--instead of each trying to get the other company's products banned from this or that market.

Before this devolves into a patents are evil, nobody has ever sued about patents before (untrue, just less public in the past), or Apple has the full right to patents, or FRAND, I was hoping to move the conversation in a slightly different direction.

The idea of pride. While I think it is a travesty that the courts have gotten involved, I think it is also clear that Samsung has shown a remarkable lack of vision and has copied the look and function of the iPhone as closely as possible. This to me is very sad. I think the new windows phones, and even some of the other android phones interesting because they push the market. Again, using lawyers is never a good solution, but shouldn't we reward companies which try to do something new too?

Admittedly IANAL, but how on earth does D618,768 pass the test of being "useful, novel, and nonobvious to an expert in the field?" How could a patent, filed in 2009, for a rounded rectangle with a screen and single button on the front, possibly meet those criteria? To what "expert in the field" would putting the screen ont he front not be obvious? How is a rounded rectangle with a screen and button "novel?" I'm pretty sure I've seen rounded rectangles before 2009.

Admittedly IANAL, but how on earth does D618,768 pass the test of being "useful, novel, and nonobvious to an expert in the field?" How could a patent, filed in 2009, for a rounded rectangle with a screen and single button on the front, possibly meet those criteria? To what "expert in the field" would putting the screen ont he front not be obvious? How is a rounded rectangle with a screen and button "novel?" I'm pretty sure I've seen rounded rectangles before 2009.

I'm not installing a plugin on my work computer, so couldn't get to the patent images. I would be surprised if they were only for a "rounded rectangle" though. Are you sure that's all the patent refers to?

I wish Apple and Samsung would settle these cases and cross-license patents so that they could compete in the marketplace by each trying to offer the best product to the consumer--like Apple and Microsoft do thanks to their patent cross-licensing--instead of each trying to get the other company's products banned from this or that market.

Apple did try before the US trial, it was actually used as evidence in court that they attempted to set up a cross-licensing deal (they would sell Samsung their patents at x dollars/device per patent if Samsung would sell Apple theirs at the same x dollars/device per patent). Samsung said no, so Apple sued.

I wouldn't say Samsung isn't winning at all, they just won an important Dutch court ruling. So overall Apple has been losing in EU and winning in US, hardly a surprise as courts typically are somewhat biased towards their own country corporations.

Overall, this is still a whole mess and patents need to be reformed dramatically.

I'm not installing a plugin on my work computer, so couldn't get to the patent images. I would be surprised if they were only for a "rounded rectangle" though. Are you sure that's all the patent refers to?

Here is the description of the patent in its entirety, for those who can't get to it:

Patent D618768 wrote:

DESCRIPTIONFIG. 1 is a front perspective view of an electronic device in accordance with the present invention;FIG. 2 is a rear perspective view of the electronic device of FIG. 3 is a front view thereof; FIG. 4 is a rear view thereof; FIG. 5 is a top view thereof; FIG. 6 is bottom view thereof; FIG. 7 is a left side view thereof; and, FIG. 8 is a right side view thereof.

As indicated above, the article of manufacture is an electronic device. Examples of an electronic device are a computer, a portable or hand-held electronic device, media player (e.g., music, video and/or game player), media storage device, a personal digital assistant, a communication device (e.g., cellular phone).

What follows are some generic sketches of "an electronic device" that looks kind of like an unbranded iPhone 3G(S):It includes some little rectangles for ports and so forth. Oddly, I think if anything that would make it harder for Apple to prove infringement, since the port layout of the Galaxy S devices is completely different (and of course they don't have big circular home buttons).

How are the Samsung and Apple phones so similar? The only similarities I see is that they are both smart phones. Pocket sized with screens as large as practicable. Wherever a design decision was there to be made, there are differences. And if you do believe that the first to have made one of them should have a monopoly on the field, then no iPhone. For they were not the first!

Is there something behind the scenes going on? Is china involved? Something just doesn't seem to add up. OK enough crazy conspiracy laughs, how does the patent and copyright system get reformed. Even "tebowing" gets copyrighted. Be careful how you pray you could be in violation.

Any electrical engineers out there; didn't headphones with in-built microphones exists all over the place prior to 2007?

I actually am an electrical engineer, but that isn't needed to answer. Wired headsets like that were common for cell phones before bluetooth became all the rage, so yes. They were mostly cheap, monaural single-ear plugs. And for gaming you had stereo headsets with a microphone boom. The XBox360 came with a single-ear one.

However, the '501 patent refers to the plug itself electrically testing what is connected, to determine if it's a stereo headset w/mic, mono headset w/mic, or just stereo headphone plugged in. Though I believe my Palm Treo was doing that before the first iPhone even came out.

However, the '501 patent refers to the plug itself electrically testing what is connected, to determine if it's a stereo headset w/mic, mono headset w/mic, or just stereo headphone plugged in. Though I believe my Palm Treo was doing that before the first iPhone even came out.

Computer sound cards have been doing that for most of this millennium.

It includes some little rectangles for ports and so forth. Oddly, I think if anything that would make it harder for Apple to prove infringement, since the port layout of the Galaxy S devices is completely different (and of course they don't have big circular home buttons).

If they ban them in Canada as well I'll be getting my Samsung phones on the black market I guess. Keep in mind that Microsoft lost to Eolas some time ago and that rather poor decision was recently overturned.

Overall, this is a clear loss and another sign that Samsung is losing its global patent battle with Apple.

Please Joe, don't editorialize. If such a thing is obvious from the story, this line is superfluous and adds nothing to the story. If such a thing is not obvious from the story, this line is just a bunch of troll fodder which seriously detracts from the article.

Admittedly IANAL, but how on earth does D618,768 pass the test of being "useful, novel, and nonobvious to an expert in the field?" How could a patent, filed in 2009, for a rounded rectangle with a screen and single button on the front, possibly meet those criteria? To what "expert in the field" would putting the screen ont he front not be obvious? How is a rounded rectangle with a screen and button "novel?" I'm pretty sure I've seen rounded rectangles before 2009.

IANAL either, but regarding the dates: if you follow the trail of Related U.S. Application Data you'll find this, filed in January 2007. And I think you'd be hard-pressed to argue that when the original iPhone launched (July 2007), a rectangular screen sitting in that particular proportion to its surrounding roundrect, completely devoid of a keypad, was not "useful, novel and nonobvious to an expert in the field".

I feel as much harm all these patent cases are doing to samsung, it may do as much good to them. They might just end up innovating more than just going the apple way. The S 3 and note 2 are a fine example. They are setting themselves apart from others... And looking at their current position they might lose cases without losing their market value...

"The ITC order issued today is an "initial determination," and the judge's decision must still be affirmed by the full commission. That should occur in February. It's not at all unusual for the full commission to undo some or all of an ITC judge's ruling, so this is far from wrapped up for Apple."

On the other hand:

"Overall, this is a clear loss and another sign that Samsung is losing its global patent battle with Apple."

So... Which is it? Is it too much to ask for a little consistency in writing? I realize that journalistic standards have fallen a long way from where they once were, especially in "tech journalism," but this is ridiculous.

I can't help but wonder what the world today would be like if someone would have granted a patent for the general layout of an airplane and the cross-section of an airfoil to a company as litigious as these two today.

Sad.

On the other hand, this thread should give a good workout to the "ignore user" feature.

Any electrical engineers out there; didn't headphones with in-built microphones exists all over the place prior to 2007?

Nokia has been doing a wired headset with a built-in microphone since the late 1990's. I'm not sure what sort of connection it uses (I think they used various custom connectors with about eight or nine pins.)And yes, I had headsets with built-in microphones, with a standard audio jack, prior to 2007...

I can't help but wonder what the world today would be like if someone would have granted a patent for the general layout of an airplane and the cross-section of an airfoil to a company as litigious as these two today.

Sad.

On the other hand, this thread should give a good workout to the "ignore user" feature.

In that hypothetical world, everyone would use French names for the parts of an airplane (like aileron and fuselage instead of the proper American terms, "flappy thing" and "tubey thing"), because innovation moved outside the US.

"I can't help but wonder what the world today would be like if someone would have granted a patent for the general layout of an airplane and the cross-section of an airfoil to a company as litigious as these two today."

What you're describing is the actual behaviour of the Wright Brothers, but fortunately their patents were unenforceable in Europe where development continued. Because of the strife this caused, and because of the carrot of enormous government investment, US aerospace companies have been less litigious.

"What you're describing is the actual behaviour of the Wright Brothers, but fortunately their patents were unenforceable in Europe where development continued. Because of the strife this caused, and because of the carrot of enormous government investment, US aerospace companies have been less litigious.

They also pioneered the "invalid application of inapplicable patents" antipattern. They patented the design of "Wing-warping" to control your aircraft: Using cables to bend the flexible timber structure of your wings. The rest of the world quickly saw that that was a stupid way to do it, and invented the aileron instead. The Wright brothers then argued that their failed design actually covered other's working designs.IIRC, all this madness only ended when the US government compulsorily acquired W&O's patents

"The ITC order issued today is an "initial determination," and the judge's decision must still be affirmed by the full commission. That should occur in February. It's not at all unusual for the full commission to undo some or all of an ITC judge's ruling, so this is far from wrapped up for Apple."

On the other hand:

"Overall, this is a clear loss and another sign that Samsung is losing its global patent battle with Apple."

So... Which is it? Is it too much to ask for a little consistency in writing? I realize that journalistic standards have fallen a long way from where they once were, especially in "tech journalism," but this is ridiculous.

squidz wrote:

Quote:

Overall, this is a clear loss and another sign that Samsung is losing its global patent battle with Apple.

Please Joe, don't editorialize. If such a thing is obvious from the story, this line is superfluous and adds nothing to the story. If such a thing is not obvious from the story, this line is just a bunch of troll fodder which seriously detracts from the article.

Glad I'm not the only one seeing this problem. I've pegged Joe as an Apple apologist since coverage of the US trial. This time, this article was a "Samsung loses x case. Oh, pooooooooooooooooooooooooor Samsung!"

Going back to these cases... anyone else have a feeling all the judicial officials/agencies involved in these cases, are just trolling the shit out of Apple back? It seems like they're trying to generate enough ill-will from the public towards Apple, to strike down on Apple hard in the end with the appeals.

For the same reason the electoral college was built, public officials at the top understand the general, mass public... can't always be trusted to make the best decisions (I, too, believe this; think Casey Anthony, OJ Simpson, and Michael Jackson trials).

I think this is why Judge Koh, knowing that her trial was trial by jury, and therefore knowing that the verdict probably wouldn't be the best, reasoned decision, just appeared to side with Apple to get the trial over with quickly to eventually force an appeal. She knew Samsung, if they lost, would file for one anyway, so she just made the process easier, while in the process, making Apple appear like the big bad bully.

That's my guess. If people are hoping these cases will be on Samsung's side in the end, I don't think all hope is lost. But, of course, my theory would all go to shite if the appeal is also going to be decided by jury.

IANAL either, but regarding the dates: if you follow the trail of Related U.S. Application Data you'll find this, filed in January 2007. And I think you'd be hard-pressed to argue that when the original iPhone launched (July 2007), a rectangular screen sitting in that particular proportion to its surrounding roundrect, completely devoid of a keypad, was not "useful, novel and nonobvious to an expert in the field".

The question most people I know debate is whether the design is non-obvious or not. I think everyone agrees that the iPhone was useful and novel, given that it was the first solid fully-functional touch phone. However, the concept of touch screen was hardly new. In fact the concept is obvious, many lay people actually touch their monitors by mistake because it seems so intuitive, and the rest of the features you list are rather intuitive... phones have been rectangular for quite some time to fit in pockets, screens have always been on the front (if not a flip phone), and phones usually have buttons on the front and sides.

-Ditching the keyboard wasn't novel (Palm??)-Proportion is a function of advances in touch screen technology. The proportion is obvious with a fully functional, gorilla glass, touch interface. It was new but not non-obvious.

What Apple did right was putting all of these ideas together when technology allowed it to be successful and pairing it with a super easy to use interface for the average Joe. Invent a non-obvious layout given the new technology? Not so much.

I wish Apple and Samsung would settle these cases and cross-license patents so that they could compete in the marketplace by each trying to offer the best product to the consumer--like Apple and Microsoft do thanks to their patent cross-licensing--instead of each trying to get the other company's products banned from this or that market.

Apple did try before the US trial, it was actually used as evidence in court that they attempted to set up a cross-licensing deal (they would sell Samsung their patents at x dollars/device per patent if Samsung would sell Apple theirs at the same x dollars/device per patent). Samsung said no, so Apple sued.

Nowhere near the same: Vastly favours apple, almost as if one of the largest and most prolific CE companies in the world wouldn't have a vastly larger amount of patents...

-Proportion is a function of advances in touch screen technology. The proportion is obvious with a fully functional, gorilla glass, touch interface. It was new but not non-obvious.

What Apple did right was putting all of these ideas together when technology allowed it to be successful and pairing it with a super easy to use interface for the average Joe. Invent a non-obvious layout given the new technology? Not so much.

'...given the new technology' is the key phrase here. The design is, as you rightly point out, a function of the underlying software/gorilla glass/touch interface. And, as you point out, the proportion is obvious with it all fully functional. However, the problem lies in the difference between the common-sense and legal definitions of 'non-obvious'.

In a patent ruling, non-obvious refers to the obviousness at the time of invention, not at the time of examination, which is the crux of the matter here. Seen together, of course almost every aspect of the iPhone's design is obvious. However, it's non-obvious if you take away the sophisticated multi-touch interface; it's non-obvious if you step back into a commercial environment where onscreen interaction for even the simplest phones were controlled by a d-pad.

You mention Palm; even within Apple's own catalogue, you can go back to the Newton for an example of a keyboardless screen-based interface. But to the best of my understanding, this is where the 'expert in the field' aspect of design patent law comes into play. In this situation, the field is mobile communications, not personal computing; hence the distinction.

I'm not saying that I think patent law handles situations like this particularly well, especially with the predisposition towards upholding an already granted patent. I do think, however, that the issue of non-obviousness is less clear than it might otherwise seem on an initial reading – especially given that we now find this form factor as familiar as we do.